JOHNSON v. CITY COUNCIL (2026)

Writ granted. New Orleans City Council employee, Lora Johnson, was terminated following the Council's investigation of sexual harassment complaints against her. She successfully appealed to the Civil Service Commission, which ordered reinstatement. The Council appealed and the court of appeal affirmed the Commission's decision. Although the court of appeal disagreed with the Commission's finding that the Council had failed to meet its burden that Ms. Johnson was terminated for just cause, it nonetheless affirmed the Commission's reinstatement of Ms. Johnson because it found the Council had failed to follow “mandatory” administrative procedures regarding the investigation and employee discipline. Johnson v. City Council, 25-0560, pp. 8-10 (La. App. 4 Cir. 3/30/26), ––– So.3d ––––.

The City of New Orleans’ Sexual Harassment Policy and Complaint investigation procedures are set forth in CAO Policy Memorandum No. 141(R), and incorporated into New Orleans City Ordinances Sec. 86-40 et. seq. In investigating allegations of sexual harassment against Ms. Johnson, the Council failed to follow the applicable policy and procedures in three separate respects. First, the section addressing initiation of sexual harassment complaints provides in part that a “sexual harassment complaint may be an oral complaint initially but must be followed by a sexual harassment or discrimination complaint form․” CAO Policy Memorandum No. 141(R), Sec. IV(A); Ord. 86-42 (2). Only one complaint against Ms. Johnson was in writing. Secondly, the section addressing investigation procedures provides that the appointing authority “shall, as soon as practically possible, notify the alleged harasser that he or she has been named in a harassment complaint and that an investigation is being conducted.” Policy Memorandum No. 141(R), Sec. V(A)(1); Ord. 86-43(1)(a). Ms. Johnson was not notified about the complaint for five months. Finally, that section also provides that “[i]t shall be the city's objective to complete all investigations within 60 days unless compelling circumstances require additional time. An extension beyond 60 days will require a written request to the Asst. CAO of the Personnel Division prior to the expiration of the investigation. The written statement of the complainant or witness constitutes the initiation of the 60-day investigation period.” Policy Memorandum No. 141(R), Sec. V(B); Ord. 86-43(2). The Council's investigation was not completed within 60 days, and no extension was obtained.

However, Memorandum No. 141(R) and Ordinance Sec. 86-45 set forth only one possible penalty for violation of the investigation procedures by the appointing authority. The section entitled “Discipline” provides that “any person who violates section[ ] ․ 86-43 (setting forth the investigation procedures) ․ may be subject to a fine of up to $500.00 per offense.” There is no provision relating to a penalty that would preclude discipline or require the discipline imposed on the employee be voided.

This court has previously considered consequences when a governmental employer fails to follow established procedures in conducting the disciplinary investigation. In Bannister v. Dep't of Streets, 95-0404 (La. 1/16/96), 666 So.2d 641, the termination of a New Orleans civil service employee was upheld by the Civil Service Commission. However, the Commission failed to comply with a civil service rule which required the Commission to decide appeals within 90 days. The court of appeal found the 90-day rule to be mandatory, thus requiring reversal of the Commission's ruling and reinstatement of the employee. This court reversed, finding the court of appeal erred in reversing the Commission's decision because of its delayed rendition. Bannister, 95-0404 at 4, 666 So.2d at 645. This court explained that a rule is mandatory if it provides for the result that will follow when the required thing (i.e., deciding appeals within 90 days) is not done, but directory if the rule is limited to what is required to be done. Id., 95-0404 at 5, 666 So.2d at 645. If the rule's purpose is “the protection of the government by guiding its officials rather than granting rights to affected private citizens” the word “shall” as used in the rule is given merely directory meaning. Id., 95-0404 at 5, 666 So.2d at 646. When a rule does not set forth the result that will follow a failure to comply, the absence of such a penalty generally indicates a discretionary intent by the drafters. Id., 95-0404 at 6, 666 So.2d at 646.

This court in Bannister also cautioned that an analysis of the rule should not focus solely on the possible prejudice to the employee caused by the failure of the employer to follow procedures, because such a limited focus would ignore “the right and duty of the appointing authority, as agent for the citizenry, to undertake disciplinary action against an employee for legal cause impairing the efficiency of the public service” and it would be an equal injustice to suffer the continuance of incompetence or insubordinate civil servants. Id., 95-0404 at 7, 666 So.2d at 646. In finding the court appeal erred in reinstating the employee, this court also took into consideration that other than the delay, the proceedings complied with other applicable procedures, and that the employee received a full and thorough evaluation. Id., 95-0404 at 7, 666 So.2d at 647.

In Marks v. New Orleans Police Dep't., 06-0575 (La. 11/29/06), 943 So.2d 1028, the Civil Service Commission upheld the termination of a police officer where the discipline was imposed beyond the sixty-day statutory period for conducting an investigation. The court of appeal reversed (which had the effect of dismissing the investigation and reinstating the officer), finding the police department circumvented the statutory “minimum standards” by not acting within the sixty-day period. Marks, 06-0575 at 1, 943 So.2d at 1030. This court reversed the court of appeal's ruling, finding that the failure to comply with the statutory sixty-day time period did not require summary dismissal of a disciplinary action. Id., 06-0575 at 12, 943 So.2d at 1036. This court reasoned that because the statute did not establish a penalty for non-compliance, and in the absence of prejudice, imposing the penalty of dismissal was not authorized. Id.¹ However, this court further explained:

We find the failure to comply with the statutory sixty-day time period does not require summary dismissal of a disciplinary action. We do find evidence of failure to comply with the sixty-day period is relevant as to whether the appellant is prejudiced by that failure. A failure to comply with the sixty-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer is demonstrated due to the delay.

Id.

Because the City's rules do not provide a penalty for the Council's failure to follow investigatory procedures, they are considered directory in nature and the failure to follow procedures alone does not serve as a basis to void the discipline imposed and reinstate Ms. Johnson. However, Bannister and Marks also suggest that the Council's failure in this regard is relevant in determining whether Ms. Johnson was prejudiced and may affect the discipline imposed.

Without considering or analyzing the City's rules in the context of Bannister or Marks, the court of appeal stated that the procedures were “mandatory” and essentially held that the Council's failure to follow the procedures required Ms. Johnson to be reinstated. The court of appeal erred in this regard. Having found the City's rules are directory, not mandatory, and therefore the Council's violation does not preclude discipline or require Ms. Johnson be reinstated, we vacate the ruling of the court of appeal and remand the matter to that court to reconsider the City's appeal and make a new determination of whether the Commission's order reinstating Ms. Johnson should be reversed.

VACATED AND REMANDED TO THE COURT OF APPEAL.

FOOTNOTES

1.   The following year, in response to Marks, the legislature added the penalty provision in La. R.S. 40:2531(C), which provides for absolute nullity of the discipline if it is not taken in “complete compliance” with the statute.

PER CURIAM

McCallum, J., dissents and would deny.